fh 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBEIARY 


Domestic  Relations 


Modern  American  Law  Lecture 


Blackstone  Institute,  Chicago 


DOMESTIC  RELATIONS 


BY 
WILLIAM  N.  GEMMILL,  Ph.B.,  LL.B.,  LL.D. 


One  of  a  Series  of  Lectures  Especially  Prepared 
for  the  Bhickstone  Institute 


BLACKSTONE    INSTITUTE 
CHICAGO 

Copyright,    1920,    by    Blackstone    Institute 


T 


WILLIAM  N.  GEMMILL 


WILLIAM  N.  GEMMILL 

Judge  "William  N.  Gemmill  was  born  at  Shan- 
non, Illinois,  in  1860.  After  attending  the  com- 
mon schools,  he  entered  Cornell  College  at  Mt. 
Vernon,  Iowa,  from  which  he  graduated  in  1886. 
From  1886  to  1890  he  was  superintendent  of  pub- 
lic schools  of  Kockford,  Iowa.  From  1890  to  1892 
he  was  superintendent  of  the  public  schools  of 
Marion,  Iowa.  In  1892  he  entered  the  law  depart- 
ment of  Northwestern  University,  from  which  he 
graduated  and  was  admitted  to  the  bar  in  1894. 
After  that  he  practiced  law  continuously  in  Chi- 
cago until  1906,  when  he  was  elected  Judge  of  the 
Municipal  Court  of  Chicago.  He  has  held  this 
position  ever  since,  being  the  only  Republican 
associate  judge  re-elected  to  that  court  in  1912. 

For  one  year  he  presided  over  the  Court  of  Do- 
mestic Relations  and  tried  during  that  time  over 
one  thousand  cases  of  wife  and  child  abandon- 
ment. 

He  has  been  president  of  the  Illinois  branch  of 
the  American  Institute  of  Criminal  Law  and 
Criminology,  is  the  author  of  "Practice  in  Civil 
Actions"  in  Modem  American  Law,  and  has  writ- 
ten many  articles  that  have  been  widely  published 
in  various  magazines  and  legal  journals. 

He  is  a  lecturer  in  the  Chicago  Kent  College  of 
Law,  also  in  the  Chicago  Law  School,  from  which 
latter  school  he  holds  the  degree  of  LL.D. 


DOMESTIC  RELATIONS 

By 

William  N.  Gemmill,  Ph.B.,  LL.B.,  LL.D. 

I. 

MAERIA6E. 

Marriage  in  some  form  has  been  recognized  in 
every  community.  Among  the  early  tribal  Indians 
there  were  well-recognized  rules  governing  the 
family  relations.  Through  many  centuries  marriage 
was  held  to  be  a  religious  rite,  and  it  was  requisite 
that  before  the  relation  of  husband  and  wife  could 
be  created  there  must  be  some  sort  of  religious  cere- 
mony attending  the  celebration  of  the  marriage. 

In  the  sixteenth  and  seventeenth  centuries  serious 
opposition  arose  in  Europe  to  the  exclusive  right  of 
the  church  to  celebrate  marriages,  it  being  contended 
that  marriage  should  be  a  civil  contract,  and  should 
be  celebrated  by  certain  designated  civil  officers. 
This  opposition  continued  until,  today,  in  nearly 
all  of  Europe,  in  the  United  States  and  Canada,  and 
in  certain  of  the  South  American  Republics,  mar- 
riage is  recognized  as  a  relationship  created  by  civil 
contract.  In  nearly  all  of  these  countries,  however, 
the  law  confers  upon  certain  persons  the  authority 
to  perform  the  marriage  ceremony,  and  expressly 
recognizes  the  legality  of  marriages  celebrated  ac- 

5 


6  MODERN  AMERICAN  LAW  LECTURE 

cording  to  tlie  canons  of  the  various  churches,  as 
well  as  of  those  celebrated  by  the  civil  officers  of  the 
law.  The  legality  of  a  marriage  is  always  to  be  de- 
termined by  the  law  of  the  place  where  it  was  per- 
formed, and  nearly  all  civilized  countries  recognize 
as  valid  a  marriage  performed  according  to  the  laws 
of  any  foreign  country  where  the  ceremony  took 
place. 

Begulation  of  Marriage. 

Each  nation  has  its  own  laws  governing  the  condi- 
tions under  which  marriage  may  be  contracted.  In 
the  United  States  these  regulations  differ  widely  in 
the  various  states.  Under  the  common  law,  any  male 
over  the  age  of  fourteen  years  and  any  female  over 
the  age  of  twelve  years  might  marry.  By  statutory 
enactment  the  age  requirement  has  been  raised  in  the 
several  states,  and  a  minor  cannot  now  be  legally 
married  without  the  consent  of  his  parents  or  legal 
guardians. 

Eugenic  Requirements.  It  is  also  requisite,  in 
order  to  create  a  valid  marriage,  that  the  parties 
possess  certain  qualifications,  such  as  mental  capac- 
ity sufficient  to  understand  the  meaning  of  the  act, 
and  that  they  be  free  from  certain  physical  disabili- 
ties. In  the  last  few  years  much  emphasis  has  been 
placed  upon  the  latter  qualification.  In  some  states 
it  is  now  the  law  that  no  one  afflicted  with  a  commu- 
nicable disease  may  be  joined  in  marriage.  Other 
states  have  forbidden  the  marriage  of  persons  who 
are  afflicted  with  certain  incurable  diseases. 

The  Eugenics  Law  of  Wisconsin  has  probably  at- 
tracted more  attention  in  this  connection  than  any 


DOMESTIC  RELATIONS  7 

other.  Chief  Justice  Winslow,  speaking  for  the 
Supreme  Court  of  that  state,  in  the  case  of  Peterson 
V.  Widule,  147  N.  W.  966,  upheld  the  constitution- 
ality of  this  act.  The  objection  that  the  classification 
of  men  about  to  marry  was  arbitrary  was  met  by  the 
argument  that  it  was  a  matter  of  common  knowledge 
that  the  number  of  cases  where  newly  married  men 
transmit  a  venereal  disease  to  their  wives  is  vastly 
greater  than  the  number  of  cases  where  women  trans- 
mit the  disease  to  their  newly  married  husbands.  It 
was  held  that  classification  was  not  to  be  condemned 
because  there  might  be  occasional  instances  in  which 
it  did  not  fit  the  situation. 

Further  objection  was  made  to  the  act  on  the 
ground  that  it  required  the  use  of  a  very  delicate 
and  expensive  blood  test  known  as  the  Wasserman 
test.  It  was  admitted  that  the  requirement  of  this 
test  would  constitute  an  embargo  on  marriage,  but  it 
was  decided  that  the  language  of  the  act  was  intended 
to  refer  to  the  tests  recognized  and  used  by  the  per- 
sons who  were  to  make  them. 

Nearly  every  state  forbids  the  marriage,  to  each 
other,  of  persons  within  certain  degrees  of  blood  re- 
lationship. In  every  state,  before  the  marriage  cere- 
mony can  be  performed,  a  license  must  be  duly  issued 
by  the  properly  constituted  authority,  and  a  marriage 
celebrated  without  such  license  is  generally  held  to  be 
voidable,  although  not  void.  The  officer  celebrating 
such  a  marriage,  however,  is  generally  subject  to 
severe  penalty. 

In  order  that  a  valid  marriage  may  be  performed, 
it  is  necessary  that  the  parties  clearly  understand 


8  MODERN  AMERICAN  LAW  LECTURE 

the  meaning  of  the  ceremony.  If  a  person  is  mar- 
ried while  in  a  state  of  intoxication,  so  that  he  is 
unable  to  comprehend  the  meaning  of  his  act,  such 
marriage  may  be  annulled,  and  the  same  is  true  of 
marriages  celebrated  where  either  of  the  parties  at 
the  time  of  the  marriage  is  under  some  duress,  or 
has  been  induced  through  fraudulent  representa- 
tions to  consent  to  the  ceremony. 

In  some  countries  only  civil  marriages  celebrated 
by  the  civil  authorities  are  recognized.  In  others 
only  marriages  performed  according  to  the  regula- 
tions of  the  church  are  recognized.  In  most  civil- 
ized countries,  however,  in  calculating  the  total  mun- 
ber  of  marriages  performed,  recognition  is  given  to 
all  marriages  performed  either  through  the  church 
or  by  the  civil  authority. 

Under  the  common  law  no  ceremony  at  all  was  re- 
quired to  effect  a  legal  marriage.  It  was  necessary 
only  for  the  parties  to  agree  with  each  other  to  enter 
into  the  marriage  relation,  the  promise  to  be  supple- 
mented by  living  together  in  a  state  of  wedlock.  In 
several  states,  as  in  Illinois,  common  law  marriages 
have  been  abolished,  and  it  is  now  requisite  that  a 
ceremony  be  performed  by  some  officer  designated 
by  law  to  perform  it.  But  in  Illinois,  until  recently, 
common  law  marriages  were  recognized  as  legal  and 
binding. 

Prohibition  as  to  Remarriage  of  Divorced  Persons. 
A  new  restriction  has  recently  been  placed  upon  mar- 
riage in  several  states,  whereby  parties  who  have  been 
divorced  are  not  permitted  to  remarry  for  a  period 
of  from  one  to  two  years  after  such  divorce.     In 


DOMESTIC  RELATIONS  9 

some  states  this  restriction  applies  only  to  the  one 
found  to  be  at  fault  in  the  divorce  proceeding.  In 
other  states  it  applies  to  both  parties.  The  penalty 
for  marrying  in  violation  of  these  restrictions  is 
usually  a  fine  or  imprisonment  for  a  certain  speci- 
fied time.  It  is  a  matter  of  considerable  doubt,  how- 
ever, whether  these  legislative  restrictions  accom- 
plish the  desired  result. 

It  has  been  found  in  practice  that  it  is  almost  im- 
possible to  impose  the  penalty  which  the  law  pre- 
scribes, where  the  restriction  has  been  violated.  One 
who  has  been  divorced  and  desires  to  remarry  within 
the  forbidden  period,  generally  does  so  by  crossing 
the  state  boundary  line  to  a  state  where  no  such  re- 
striction prevails.  The  question,  therefore,  arises 
whether  or  not,  if  a  crime  has  been  committed  by 
reason  of  the  restriction  being  violated,  the  courts 
of  the  state  granting  the  divorce  may  take  cognizance 
of  such  violation.  If  not,  then  neither  may  the  laws 
of  the  state  where  the  second  marriage  was  per- 
formed recognize  and  punish  the  offender,  for  no 
law  of  that  state  is  violated. 

A  practical  illustration  of  this  difficulty  is  shown 
by  the  case  of  People  v.  Prouty,  262  lU.  218,  104 
N.  E.  387.  In  this  case  the  trial  judge,  in  awarding 
the  decree  of  divorce,  had  granted  an  injunction  for- 
bidding the  remarriage  of  the  party  at  fault  for  the 
period  of  one  year,  as  provided  by  statute.  Prouty 
disobeyed  the  injunction  by  going  to  another  state 
and  marrying.  The  Supreme  Court  held  he  could 
not  be  punished  for  contempt  of  the  trial  court  in- 
asmuch as  a  court  of  chancery  has  no  power  to  issue 


10  MODERN  AMERICAN  LAW  LECTURE 

an  injunction  to  prevent  the  doing  of  a  criminal  act 
where  no  property  right  is  involved.  Consequently, 
since  the  injunction  was  issued  without  authority, 
it  was  a  nullity,  and  no  pimishment  could  be  meted 
out  for  violation  of  the  order.  Prior  to  this  decision 
it  had  been  the  custom  in  Illinois  to  attach  a  similar 
injunction  to  nearly  all  divorce  decrees,  but  the 
practice  has  now  been  abandoned  as  useless. 

This  restriction  upon  the  right  to  remarry  after 
divorce  often  works  serious  injury  to  one  of  the  con- 
tracting parties.  In  many  cases  arising  in  the  Court 
of  Domestic  Relations  in  Chicago,  divorced  persons 
have  been  remarried  to  others  who  were  in  no  sense 
guilty  of  having  violated  any  of  the  criminal  laws 
of  the  state,  these  marriages  taking  place  outside  of 
the  state  granting  the  divorce.  Shortly  after  such 
remarriage  the  wife,  who  is  generally  the  innocent 
person,  is  abandoned  by  the  man  whom  she  supposes 
to  be  her  husband.  If  he  is  arrested  and  brought 
before  the  court  on  the  charge  of  wife  abandonment 
he  immediately  pleads  the  statute  which  declares  his 
remarriage  void,  and  insists  he  is  under  no  obliga- 
tion whatsoever  to  support  or  care  for  his  latest  wife. 

The  tendency  during  the  last  few  years  is  to  legis- 
late against  the  marriage  of  persons  who  may  be 
under  some  physical  or  mental  disability.  A  law 
became  effective  in  England  on  January  1, 1913,  mak- 
ing it  a  misdemeanor  for  anyone  to  marry  a  defective. 
The  law  does  not  define  the  meaning  of  the  word 
■^* defective,'^  and  there  is  much  discussion  now  as  to 
whether  or  not  the  term  should  include  habitual 
drunkards,  idiots,  and  feeble-minded  persons.    It  is 


DOMESTIC  RELATIONS  11 

doubtful,  however,  whether  legislation  along  this 
line  wiU  achieve  the  result  aimed  at.  There  is  se- 
rious danger  in  going  too  far  in  restricting  marriages. 
Increase  in  Marriage  Rate.  From  1900  to  1906 
there  was  a  rapid  increase  in  the  rate  of  marriages 
for  each  succeeding  year.  The  annual  increase  in 
the  number  of  marriages  in  the  United  States  for  a 
period  of  twenty  years  prior  to  1906  w^as  about 
19,000  per  year,  but  from  1905  to  1906  the  increase 
was  48,503.  In  1890  there  were  in  the  United  States 
but  87  marriages  for  every  ten  thousand  of  our  popu- 
lation, while  in  1900  there  were  90  marriages  for 
every  ten  thousand  of  population.  The  average 
number  of  marriages  for  every  ten  thousand  in  pop- 
ulation for  all  of  Europe  in  1906  was  76,  while  in 
the  United  States  for  that  year  there  were  a  little 
over  93  marriages  for  every  ten  thousand.  The 
people  of  the  United  States  may,  therefore,  be  re- 
garded as  the  most  married  of  any  in  the  world. 

n. 

RIGHTS  OP  HUSBAND  AND  WIFE. 

Under  the  common  law  the  wife  was  little  more 
than  the  slave  of  her  husband.  She  could  possess 
neither  personal  nor  real  property.  Her  identity 
was  entirely  merged  in  that  of  her  husband,  the  law 
presuming  them  to  be  one,  so  far  as  their  dealing 
with  each  other  and  the  public  was  concerned.  The 
husband  was  always  regarded  as  the  head  of  the 
family  with  full  right  to  direct  the  manner  in  which 
the  family  life  should  be  conducted.     He  was  given 


12  MODERN  AMERICAN  LAW  LECTURE 

the  custody  of  the  children,  and  had  the  first  right 
to  dictate  and  direct  their  care  and  education.  His 
name  was  given  to  the  family,  and  he  had  the  right 
to  chastise  both  the  wife  and  children  within  certain 
limitations.  Upon  him  devolved  the  duty  of  sup- 
porting the  family,  and  he  alone  could  determine  the 
quality  of  such  support. 

The  common  law  has  been  much  modified  by  statute 
in  these  later  years,  so  that  today  the  separate  iden- 
tity of  the  wife  is  clearly  recognized  by  the  statutes. 
She  may  possess  both  personal  and  real  property  in 
her  own  name,  and  in  some  states  she  may  buy  and 
sell  the  same  without  consultation  with  or  interfer- 
ence from  her  husband.  In  general,  however,  she 
has  a  dower  right  in  all  the  real  estate  of  her  husband 
and  he  cannot  sell  or  dispose  of  it  without  her  con- 
sent. He  likewise  has  a  dower  right  in  her  individual 
property  which  she  cannot  dispose  df  without  his 
consent.  In  many  jurisdictions  she  has  an  equal 
right  with  her  husband  to  direct  the  care  and  educa- 
tion of  the  children.  In  practically  every  jurisdic- 
tion, however,  the  husband  is  still  recognized  as  the 
head  of  the  family,  having  the  right  to  choose  the 
domicile  of  the  family,  and  the  wife  is  required, 
under  the  law,  to  accept  his  choice  and  to  follow  him 
to  that  domicile.  The  husband  no  longer  has  the 
right  to  chastise  the  wife,  but  is  required  to  support 
her  and  the  children  in  a  manner  compatible  with 
his  earnings  and  financial  standing  in  the  community. 

Under  the  common  law,  all  the  earnings  of  wife 
and  children  belonged  to  the  husband,  and  he  could 
dispose  of  his  wife's  earnings  without  consulting  her. 


DOMESTIC  RELATIONS  13 

If  the  wife  and  husband  occupied  property  jointly, 
the  presumption  of  law  was  that  the  property  be- 
longed to  the  husband  rather  than  to  the  wife.  By 
statute  it  is  now  provided  that  husband  and  wife  may 
enter  into  ante-nuptial  agreements,  which  shall  be 
legal  and  binding  upon  both  parties,  and  by  which 
each  party  to  the  agreement  may  surrender  any  right 
or  interest  which  he  has  in  the  property  of  the  other. 
Under  the  common  law,  so  completely  was  the  hus- 
band in  control  of  all  the  property  acciunulated  by 
the  family,  that  even  the  personal  adornments  of 
the  wife  belonged  to  the  husband  and  she  could  not 
dispose  of  them  without  his  consent.  He,  however, 
had  no  right  to  bequeath  the  same  by  will,  but  upon 
his  death  such  property  became  the  sole  possession 
of  his  wife. 

Under  the  common  law,  the  wife  could  never  ap- 
pear against  her  husband  in  any  judicial  proceeding. 
She  still  may  not  testify  against  him  except  in  actions 
for  divorce,  for  separate  maintenance,  or  where  he 
has  committed  some  act  of  personal  violence  against 
her. 

Family  Necessities. 

Under  the  common  law,  the  husband  was  bound 
always  to  support  the  family.  To  assist  him,  how- 
ever, to  secure  proper  support,  he  had  the  right  to 
insist  that  his  wife  and  all  the  children  who  were 
capable  of  earning  anything  should  work.  But  grad- 
ually many  restrictive  laws  were  passed,  forbidding 
the  children  to  work  at  certain  employments  or  until 
they  had  arrived  at  a  certain  age.  The  right  of  the 
wife  to  possess  her  own  earnings  was  recognized,  and 


14  MODERN  AMERICAN  LAW  LECTURE 

she  was  jointly  with  her  husband  bound  to  the  sup- 
port of  the  family.  To  that  end  statutes  were  passed, 
making  both  husband  and  wife  liable  for  all  articles 
purchased,  which  were  necessary  to  the  general  sup- 
port and  care  of  the  family.  This  obligation  is  a 
continuous  one  and  affects  both  husband  and  wife 
in  whatever  condition  they  may  find  themselves.  If 
they  are  in  prison  or  are  insane  or  are  otherwise 
incapacitated,  the  obligation  still  rests  upon  them  to 
contribute  whatever  is  in  their  power,  to  the  support 
of  the  other  members  of  the  family.  This  support 
may  extend  outside  the  children  of  the  family  and 
include  the  parents  of  the  husband  and  wife. 

What  Constitutes  a  Family  Necessity.  Much  con- 
fusion has  arisen,  in  interpreting  these  statutes,  as 
to  what  should  be  regarded  as  family  necessities.  In 
nearly  all  jurisdictions  it  is  recognized  that  proper 
medical  services,  food,  clothing  and  household  fur- 
niture are  to  be  regarded  as  necessities.  In  some 
jurisdictions  legal  services  are  to  be  regarded  as  fam- 
ily necessities.  In  other  jurisdictions  articles  of 
adornment,  both  for  the  person  and  for  the  home, 
that  do  not  directly  contribute  to  the  nourishment 
of  the  family,  may  be  regarded  as  necessities  for 
which  both  the  husband  and  wife  will  be  liable.  In 
some  states  a  horse  and  buggy  used  in  the  business 
of  the  husband  is  held  to  be  a  necessity.  In  other 
cases  diamond  rings  and  other  valuable  articles  of 
adornment  are  held  to  come  within  the  rule  of  neces- 
sities. What  is  to  be  regarded  as  a  family  necessity, 
depends  somewhat  upon  the  immediate  circum- 
stances, and  can  only  be  determined  by  the  social  and 


DOMESTIC  RELATIONS  15 

financial  condition  of  the  parties  at  the  time  such 
purchases  are  made.  While  a  husband  is  bound  al- 
ways to  the  support  of  his  wife  and  children,  he  is 
not  always  bound  to  the  support  of  the  children  of 
his  wife  by  a  former  marriage. 

One  who  sells  to  the  family  with  the  purpose  of 
holding  such  family  to  the  payment,  on  the  ground 
that  the  purchases  were  necessary  to  its  support, 
should  first  ascertain  whether  or  not  the  husband  and 
wife  are  living  together  at  the  time  of  the  sale.  If 
they  are  living  apart  through  the  fault  of  the  wife, 
articles  purchased  by  her  without  the  express  knowl- 
edge or  consent  of  the  husband  will  not  be  regarded 
as  necessities  for  which  he  may  be  made  liable.  If, 
however,  they  are  living  apart  through  the  fault  of 
the  husband,  and  because  of  his  abandonment  or 
cruelty,  he  will  still  remain  liable,  notwithstanding 
they  were  purchased  without  his  knowledge  or  con- 
sent. If  they  are  living  apart  by  mutual  consent,  and 
articles  of  family  necessity  are  furnished  to  the  wife, 
both  husband  and  wife  will  generally  be  held  liable 
for  the  payment  of  the  value  of  such  articles.  If  a 
husband  is  living  apart  from  his  wife  and  he  desires 
to  be  relieved  from  the  obligation  of  purchases  made 
by  her  in  the  name  of  the  family,  he  should  give 
notice  to  the  parties  selling  such  articles,  that  he  will 
not  be  responsible  for  such  obligations  incurred  by 
his  wife.  To  make  such  a  notice  effective  it  must 
be  in  writing  and  must  be  personal.  The  usual  notice 
inserted  in  newspapers  will  generally  not  avail  to 
relieve  the  husband  from  obligations  of  this  char- 
acter. 


16  MODERN  AMERICAN  LAW  LECTURE 

Contracts  Between  Husband  and  Wife. 

At  common  law  all  contracts  made  between  hus- 
band and  wife  were  void  on  the  theory  that  they, 
being  one  person,  could  not  enter  into  a  valid  con- 
tract. In  later  years,  however,  the  right  of  the 
husband  and  wife  to  make  contracts  between  them- 
selves affecting  the  personal  property  of  each  of  them 
has  been  well  established.  They  cannot  make  a  con- 
tract for  the  disposition  of  property  belonging  to 
either  or  both  of  them,  if  such  contract  would  be  a 
fraud  upon  the  creditors  of  either  of  them.  In  the 
absence  of  creditors  the  husband  may  sell  property 
to  the  wife,  or  the  wife  to  the  husband,  or  they  may 
jointly  dispose  of  their  property  in  any  way  they 
choose,  so  long  as  they  do  not  work  an  injury  to  their 
creditors. 

At  common  law  it  was  not  possible  for  the  hus- 
band to  make  a  gift  of  his  property  to  his  wife.  He 
could  not  even  make  her  a  present  of  her  own  earn- 
ings. By  modern  legislation,  however,  it  is  provided 
that  the  husband  may  give  to  the  wife,  or  the  wife  to 
the  husband,  whatsoever  property  they  choose,  so 
long  as  they  do  not  work  an  injury  to  creditors  or  to 
others  to  whom  they  may  owe  special  obligations  in 
reference  to  such  property. 

When  the  One  May  Be  an  Implied  Agent  of  the 
Other.  The  wife  will  be  regarded  as  the  implied 
agent  of  her  husband  only  with  reference  to  the  pur- 
chase of  such  household  articles  as  are  generally 
necessary  for  the  support  of  the  family.  All  pur- 
chases of  groceries  or  household  furniture  for  the 
use  of  the  family  may  be  made  by  the  wife,  and  her 


DOMESTIC  RELATIONS  17 

authority  from  her  husband  will  be  implied,  and  he 
will  be  liable  for  such  obligations.  The  wife,  how- 
ever, has  no  implied  authority  from  the  husband  to 
sign  a  lease  for  the  premises  occupied  by  the  family, 
or  to  issue  notes,  or  to  sign  contracts  affecting  the 
business  in  which  the  husband  is  engaged,  or  in  any 
other  way  to  bind  the  husband  except  as  to  those  mat- 
ters that,  in  the  general  conduct  of  the  family,  are 
usually  performed  by  the  wife. 

A  broader  agency  on  behalf  of  the  husband  is  im- 
plied by  law,  and  his  right  to  make  leases  and  con- 
tracts, and  to  create  other  obligations  which  will 
affect  the  joint  property  of  husband  and  wife,  is  gen- 
erally undisputed.  But  he  has  no  right  to  make  a 
contract  to  dispose  of  the  wife^s  dower  interest  in 
real  property  or  of  her  joint  interest  in  personal 
property,  without  her  consent. 

Lidbility  of  the  One  for  the  Torts  or  Crimes  of  the 
Other.  Carrying  out  the  theory  that  the  husband 
and  wife  are  one,  the  common  law  made  the  husband 
responsible  for  his  wife's  torts,  and  sometimes  for 
her  crimes,  the  thought  being  that  she  could  not  com- 
mit a  tort  without  in  some  way  he  was  responsible 
for  it.  Today  the  husband  may  still  be  liable  for  the 
torts  of  his  wife,  depending  altogether  upon  the  cir- 
cumstances of  each  particular  case.  If  he  is  present 
and  in  any  way  participates  in  the  tortious  act,  of 
course  he  is  liable.  Even  if  he  is  not  present,  but  by 
his  conduct  directs  or  encourages  her  course,  he  may 
be  liable.  The  husband  is  no  longer  liable  for  the 
crimes  of  his  wife,  unless  these  were  committed  under 
some  form  of  coercion  by  him. 


18  MODERN  AMERICAN  LAW  LECTURE 

ni. 

SEVERING  THE  MARRIAGE  RELATION. 

It  is  always  well  to  keep  clearly  in  mind  the  dis- 
tinction between  annulment  and  divorce  as  remedies 
for  legal  separations.  If  the  parties  to  the  marriage 
were  both  duly  qualified  under  the  laws  of  the  state 
where  the  marriage  was  performed,  and  no  fraud, 
duress  or  coercion  were  exercised  to  induce  the  mar- 
riage contract,  then  the  remedy  for  separation  must 
be  by  divorce.  If,  on  the  other  hand,  either  of  the 
parties  was  under  some  legal  disability  whereby,  un- 
der the  law  of  the  state,  he  or  she  was  not  capable 
of  entering  into  the  marriage  relation,  then  the  rem- 
edy should  be  a  bill  for  annulment. 

Annulment  of  Marriage. 

It  frequently  happens  that  minors  are  married 
without  the  consent  of  their  parents,  contrary  to  the 
express  provisions  of  the  state.  In  such  case  annul- 
ment is  always  the  proper  remedy.  It  is  not  at  all 
infrequent  that  at  the  time  the  marriage  ceremony  is 
performed  one  of  the  parties  is  incapable  of  entering 
into  the  contract  because  of  intoxication  or  the  use 
of  some  drug  which  renders  him  or  her  unable  to 
understand  the  meaning  of  the  act  performed.  In 
all  such  cases  the  proper  remedy  is  by  a  bill  to  annul. 

If  one  of  the  parties  has  been  fraudulently  in- 
duced, through  false  representations,  to  consent  to 
the  marriage  contract  and  to  enter  into  the  marriage 
relation,  or  if  he  or  she  has  been  coerced,  even  if  such 


DOMESTIC  RELATIONS  19 

coercion  proceeds  from  the  parents  of  either  of  the 
parties,  or  if  by  threat  or  intimidation  (such  as 
would  amount  to  a  legal  duress)  the  marriage  has 
been  induced,  a  court  of  equity  will  declare  the 
marriage  void. 

The  Procedure  for  Annulment.  The  remedy  to 
restore  the  status  quo  of  parties  who  have  been  ille- 
gally married  is  by  a  bill  in  equity  for  an  annulment 
of  the  marriage.  The  question  frequently  arises  a** 
to  whether  a  marriage  that  is  void  under  the  statute 
should  be  so  annulled.  It  is  the  general  rule  that  if 
the  marriage  is  one  which  by  law  is  declared  to  be 
void,  as  where  one  of  the  parties  is  already  legally 
married,  it  is  not  necessary  that  further  proceeding 
be  taken  to  annul  the  marriage. 

In  states  where  certain  physical  ailments  or  dis- 
eases are  declared  to  be  a  bar  to  entering  into  the  mar- 
riage relation,  the  proper  remedy  to  dissolve  a  mar- 
riage entered  into  contrary  to  the  provisions  of  such 
statute  is  by  a  bill  in  equity  for  annulment.  In  such 
cases,  however,  it  is  always  necessary  to  show  that 
the  physical  or  mental  condition  existed  prior  to  the 
marriage.  If  these  conditions  arose  after  the  mar- 
riage they  cannot  affect  its  validity.  Where  a  mar- 
riage has  been  entered  into  between  parties  of  a  blood 
relationship  prohibited  by  the  statutes  of  the  state, 
such  marriage  is  void  and  no  act  is  necessary  in 
order  to  separate  the  parties,  or  to  allow  either  of 
them  to  enter  into  new  marriage  relations. 

The  Bight  of  Annulment  Is  Not  Dependent  on 
Statute.  The  courts  of  chancery,  without  any  express 
statutory  provision,  have  original  power  to  decree 


20  MODERN  AMERICAN  LAW  LECTURE 

an  annulment  of  marriage,  under  a  proper  proceeding 
brought  for  that  purpose.  The  right  to  have  the  mar- 
riage annulled  accrues  as  soon  as  the  injured  party- 
discovers  the  ground  for  such  annulment,  and  gen- 
erally continues,  without  being  barred  by  the  Statute 
of  Limitations,  until  one  of  the  parties  to  the  mar- 
riage dies,  unless  otherwise  dissolved  by  the  court. 
Generally,  where  a  right  to  annul  a  marriage  ac- 
crues because  of  some  physical  or  mental  disability, 
the  court  has  the  power  to  direct  a  physical  or  mental 
examination  of  the  party  complained  against,  and  it 
is  the  duty  of  such  party  to  submit  himself  to  a 
proper  examination,  under  the  direction  of  the  court, 
in  order  to  determine  whether  or  not  ground  exists 
for  such  annulment.  This  is  particularly  true  where 
the  charge  is  impotency,  or  an  incurable  disease  con- 
tracted before  marriage. 

Separate  Maintenance. 

It  is  not  always  easy  to  determine  when  a  wife  is 
entitled  to  maintain  a  suit  for  separate  maintenance. 
In  general,  such  a  proceeding  is  not  brought  for  the 
purpose  of  determining  the  status  of  the  parties,  but 
merely  for  the  recovery  of  money  for  the  support  and 
maintenance  of  the  wife  apart  from  her  husband. 
It  is  generally  requisite  before  such  an  action  can  be 
maintained  that  the  wife  should,  at  the  time  the  pro- 
ceeding is  begun,  be  living  separate  and  apart  from 
her  husband  without  her  fault.  The  phrase  '*  with- 
out her  fault'*  is  often  hard  of  interpretation,  for  no 
two  cases  arising  will  be  exactly  alike.  In  many  in- 
stances the  wife  will  be  found  to  have  left  the  hus- 


DOMESTIC  RELATIONS  21 

band  for  what  appeared  to  her  to  be  good  cause,  and 
what  may  appear  to  the  court  to  be  good  cause,  but 
which,  under  a  long  line  of  precedents,  may  not  be 
sufficient  legal  ground  for  such  separation. 

If  the  wife  has  refused  to  accompany  her  husband 
to  a  new  domicile,  even  though  such  refusal  may 
seem  at  the  time  to  have  been  justified,  she  will  not 
be  able  to  maintain  an  action  for  separate  mainte- 
nance, he  having  the  legal  right  to  choose  such  domi- 
cile. If  she  has  left  him  because  he  has  made  state- 
ments reflecting  upon  her  virtue,  or  because  he  has 
been  exceedingly  disagreeable,  if  his  conduct  in  this 
regard  does  not  amount  to  what  is  usually  termed 
cruelty,  she  will  not  be  able  to  maintain  an  action  for 
separate  maintenance.  If,  after  a  separation  has  oc- 
curred, the  husband  invites  the  wife  to  return  to  him, 
and  she  does  so  in  good  faith,  believing  in  his  prom- 
ises to  change  his  course  of  conduct,  and  it  later  de- 
velops that  his  conduct  has  not  changed,  her  return 
to  him  will  not  be  held  to  have  condoned  the  offense  on 
account  of  which  the  separation  originally  occurred. 
The  causes  for  which  separations  may  occur  and  suits 
for  separate  maintenance  be  maintained  must  gen- 
erally be  of  a  character  as  grave  as  those  for  which 
divorce  may  be  granted. 

Divorce. 

Wherever  marriage  has  been  recognized  as  an  insti- 
tution, there  has  been  found  some  definite  regulation 
in  reference  to  divorce.  Among  the  early  Jews  all 
that  was  necessary  in  order  that  the  husband  might 
divorce  his  wife  was  for  him  to  give  her  a  written 


22  MODERN  AMERICAN  LAW  LECTURE 

bill  of  divorcement  and  send  her  away.  Among  the 
early  Greeks  there  were  many  divorces,  and  but  very 
few  barriers  were  placed  in  the  way  of  securing  legal 
discontinuance  of  the  marriage  relation.  In  Rome, 
during  the  earlier  periods,  family  ties  were  much 
more  closely  guarded  than  among  the  Greeks ;  so  far 
as  the  records  disclose,  no  divorces  were  granted  in 
Rome  for  a  period  of  over  five  hundred  years;  but 
shortly  following  the  time  of  the  Caesars,  divorces 
became  much  more  frequent,  and  either  husband  or 
wife  might  secure  a  divorce  for  causes  which  would 
be  regarded  today  as  exceedingly  trivial.  In  France 
under  the  rule  of  Napoleon,  marriage  was  established 
as  a  civil  contract ;  divorces  were  allowed  for  several 
causes,  and  became  more  or  less  frequent,  until  the 
beginning  of  the  nineteenth  century,  when  a  legal 
divorce  was  very  difficult  of  attainment. 

In  the  early  history  of  the  American  colonies  few 
divorces  were  granted.  It  is  said  that  no  divorces 
were  granted  in  New  York  for  a  period  of  one  hun- 
dred years  preceding  the  Revolutionary  War,  while 
in  Pennsylvania  divorces  were  recognized  as  a  method 
of  securing  a  legal  separation,  from  the  first  organ- 
ization of  the  colony. 

Legal  Grounds  for  Divorce.  The  greatest  embar- 
rassment of  the  United  States  touching  her  divorce 
laws  is  their  lack  of  uniformity.  In  no  two  states  are 
the  grounds  for  divorce  exactly  the  same.  The  result 
is  that  people  who  are  unable  to  secure  divorce  in  one 
state  may  move  temporarily  into  another  state  where 
divorce  laws  are  more  liberal,  in  order  to  obtain  a 
legal    separation.      The    most    generally    accepted 


DOMESTIC  RELATIONS  23 

grounds  for  divorce  in  the  United  States  are  adul- 
tery, habitual  drunkenness,  continued  and  repeated 
cruelty,  desertion,  generally  for  a  period  of  two 
years,  conviction  of  a  felony,  and  impotency.  To 
these  general  causes  must  be  added  others,  such  as 
insanity,  recognized  in  some  of  the  states.  As  a  gen- 
eral rule  insanity  arising  after  marriage  is  not  a 
ground  for  divorce.  This  is  true  in  Illinois,  Indiana, 
Iowa,  Kansas  and  Kentucky,  although  several  other 
states  give  fuU  recognition  to  this  as  a  legal  ground 
for  permanent  separation. 

Non-support  is  a  ground  for  divorce  in  some  states, 
but  is  not  generally  held  sufficient  unless  accompanied 
with  one  or  more  of  the  other  recognized  causes  for 
divorce.  In  every  application  for  divorce  it  is  neces- 
sary to  base  the  action  upon  one  or  more  of  the  causes 
prescribed  in  the  particular  jurisdiction  in  which  the 
proceeding  is  brought.  Otherwise  the  action  must 
fan. 

Unlike  an  action  for  separate  maintenance,  a  di- 
vorce proceeding  is  intended  to  fix  the  status  of  the 
parties  in  their  relation  to  each  other.  While  the 
court  in  such  proceeding  will  decree,  in  a  proper  case, 
the  payment  of  alimony,  yet  such  payment  is  inci- 
dental to  the  main  purpose  of  the  suit,  and  is  intended 
only  to  give  proper  support  to  the  wife  who  has  been 
found  by  the  court  to  be  without  fault. 

In  all  actions  for  divorce  where  there  are  children 
in  the  family,  the  court  will  direct  to  which  one  of 
the  parties  the  custody  of  the  children  will  be  com- 
mitted. While  the  husband  generally  has  the  first 
right  to  the  custody  of  the  children,  the  court  is  at 


24  MODERN  AMERICAN  LAW  LECTURE 

liberty  to  grant  the  custody  of  such  children  to  which- 
ever parent  may  seem  the  best  fitted  to  look  after 
their  care  and  education. 

Divorce  as  an  Institution.  Frequently  assaults  are 
made  against  divorce  as  an  institution,  and  it  is  urged 
that  the  state,  by  enlarging  its  grounds  for  divorce, 
assists  in  destroying  the  sanctity  of  the  home,  and 
increases  the  already  large  number  of  orphans  cre- 
ated by  such  legal  separations.  There  is  a  good  deal 
of  misapprehension  upon  this  subject.  In  the  great 
majority  of  cases  the  children  are  not  made  orphans 
by  the  divorce  of  their  parents,  but  were  orphans  long 
before  the  divorce  proceedings  were  instituted. 

In  the  centuries  immediately  preceding  the  middle 
ages  but  few  divorces  were  granted  in  Europe.  The 
result  was  the  separation,  without  sanction  of  law, 
of  a  very  large  number  of  people  who  refused  for 
some  reason  to  live  together.  One  of  the  fundamental 
demands  of  the  Reformation,  as  laid  down  by  Martin 
Luther,  was  that  the  state  be  given  the  right  to  deter- 
mine when  divorce  should  be  granted.  Ever  since  his 
day  there  has  been  a  gradual  increase  in  the  number 
of  divorces  throughout  the  civilized  world.  From 
1887  to  1906,  945,625  divorces  were  granted  in  the 
United  States,  an  average  of  47,281  annually.  The 
average  number  of  divorces  granted  annually  in  the 
whole  of  Europe  during  that  time  was  30,796.  In 
1906,  the  last  year  for  which  reliable  statistics  have 
been  collected,  72,062  divorces  were  granted  in  this 
country.  Out  of  the  total  divorces  granted  covering 
this  period  567,941  were  granted  in  families  where 
there  were  no  children,  and  in  256,318  cases  the  par- 


DOMESTIC  RELATIONS  25 

ties  were  separated  within  less  than  one  year  after 
their  marriage. 

The  Cause  of  Divorce,  In  considering  the  divorce 
problem  one  must  be  careful  to  distinguish  the  cause 
from  the  effect.  The  cause  for  the  separation  of  the 
family  is  not  the  divorce,  but  the  efficient  cause  is 
always  the  conditions  which  made  divorce  necessary. 
The  following  were  the  causes  for  divorces  granted 
in  the  United  States  covering  the  period  from  1887 
to  1906: 

Desertion  of  wife  by  husband 211,219 

Desertion  of  husband  by  wife 156,283 

Cruelty  of  husband  to  wife 173,047 

Cruelty  of  wife  to  husband 33,178 

Adultery  of  husband 62,869 

Adultery  of  wife 90,890 

Intemperance  of  husband 167,211 

Intemperance  of  wife 17,368 

Non-support  of  wife  by  husband 34,664 

Non-support  of  husband  by  wife 6 

It  is  also  interesting  to  note  that  the  largest  num- 
ber of  divorces  are  granted  in  rural  rather  than  in 
urban  communities.  In  the  Western  states,  where 
there  are  but  few  large  cities,  many  more  divorces  are 
granted,  in  proportion  to  the  population,  than  in  the 
big  centers  of  population  in  the  Eastern  and  Middle 
states.  This  may  be  explained,  in  part,  by  the  more 
liberal  divorce  laws  in  these  Western  states,  and  by 
the  further  fact  that  many  persons  from  the  East 
have  gone  to  the  Western  states  in  order  to  secure 
temporary  residence  sufficient  to  obtain  a  legal  de- 


26  MODERN  AMERICAN  LAW  LECTURE 

cree.  This,  however,  is  not  a  satisfactory  explana- 
tion of  the  facts  that  more  divorces  are  granted  in 
the  state  of  Washington,  in  proportion  to  its  popula- 
tion, than  in  any  other  state,  the  second  in  rank  being 
Montana,  third  Colorado,  fourth  Arkansas,  fifth  Ore- 
gon, sixth  Wyoming,  while  Illinois  is  twenty-third 
and  New  York  is  forty-seventh.  Apparently  the 
states  which  have  the  lowest  percentage  of  illiteracy 
have  the  highest  percentage  of  divorces. 

IV. 

WIFE  AND  CHILD  ABANDONMENT. 

Under  the  common  law  there  was  no  penalty  im- 
posed upon  the  husband  for  the  abandonment  of  his 
wife.  Gradually,  the  several  states  have  enacted  laws 
making  it  a  criminal  offense  for  a  husband  to  aban- 
don and  desert  his  wife  willfully,  and  making  the 
penalty  a  fine  or  imprisonment,  or  often  both. 

Generally,  actions  for  wife  abandonment  are 
brought  in  the  name  of  the  People  of  the  State,  and 
are  prosecuted  in  the  same  manner  as  all  other  mis- 
demeanors. In  states  where  prosecutions  for  misde- 
meanors are  carried  on  by  indictment,  it  is  necessary 
that  an  indictment  should  be  returned  by  a  grand 
jury  before  the  husband  may  be  arraigned  upon  the 
charge  of  wife  abandonment.  In  twenty-four  out  of 
the  forty-eight  states,  however,  all  prosecutions  for 
misdemeanors  may  be  carried  on  today  by  informa- 
tion, and  it  is  not  necessary  that  a  grand  jury  be 
called  in  order  that  a  proper  presentation  of  the 
charge  may  be  made  to  the  court. 


DOMESTIC  RELATIONS  27 

Where  wife  abandonment  is  in  itself  a  criminal 
offense,  it  is  only  necessary,  in  order  to  secure  a  con- 
viction of  a  husband  for  wife  abandonment,  that  the 
state  prove  he  willfully  abandoned  and  deserted  his 
wife  without  just  cause.  In  most  of  the  states,  how- 
ever, including  Illinois,  the  criminal  statute  of  wife 
abandonment  is  linked  with  non-support,  and  before 
a  husband  can  be  convicted  of  the  offense  it  must 
be  shown  not  only  that  he  willfully  abandoned  his 
wife  without  just  cause,  but  that  he  failed  to  provide 
properly  for  her  support  and  maintenance,  People  v. 
Bos,  162  HI.  App.  454.  It  has  been  held  that  it  is  no 
excuse  for  the  husband  to  say  that  the  necessities 
had  been  furnished  his  family  by  friends,  State  v. 
WaUer,  90  Kan.  829,  136  Pac.  215. 

Is  Abandonment  a  Continuing  Offense? 

Much  discussion  has  arisen  in  several  jurisdictions 
as  to  whether  wife  abandonment  is  a  continuing  of- 
fense, but  in  order  to  determine  this  it  is  necessary 
to  construe  the  particular  statute  under  which  the 
charge  is  made.  In  New  Jersey  it  has  been  held  that 
wife  abandonment  is  a  continuing  offense,  even 
though  the  statute  there  provides  that  the  offense  con- 
sists in  willfully  abandoning  and  neglecting  to  sup- 
port the  wife,  Clifford  v.  Overseer  of  the  Poor,  37 
N.  J.  Law  152.  Likewise,  in  New  York,  People  ex 
rel.  V.  Dufan,  125  N.  Y.  Supp.  71,  it  is  held  that  wife 
abandonment  coupled  with  non-support  is  a  continu- 
ing offense,  and  that  a  conviction  for  one  offense  is 
no  bar  to  a  second  conviction,  even  though  the  hus- 


28  MODERN  AMERICAN  LAW  LECTURE 

band  may  not  have  returned  to  the  wife  after  the  first 
conviction  and  sentence. 

According  to  a  recent  decision  of  the  Supreme 
Court  of  Illinois,  People  v.  Heise,  257  HI.  443,  100 
N.  E.  1000,  it  is  held  that,  under  the  statute  of  that 
state  on  wife  abandonment,  there  cannot  be  a  second 
conviction  unless  the  convicted  husband,  after  the 
first  conviction,  returns  to  the  family,  and  again 
deserts  it.  Under  this  statute,  abandonment  and  fail- 
ure to  support  are  coupled  with  the  conjimction 
"and,''  making  the  two  one  offense,  while  in  the  New 
York  statute  abandonment  and  failure  to  support  are 
joined  with  the  conjunction  "or,"  so  that  in  the  latter 
state  a  criminal  action  may  lie  for  either  of  the  of- 
fenses, and  a  new  o:ffense  will  be  held  to  have  arisen 
whenever  the  husband  fails  or  refuses  to  support  the 
wife,  notwithstanding  previous  convictions. 

Effect  of  the  Wife's  Leaving. 

The  most  difficult  question  arises,  in  the  considera- 
tion of  cases  involving  wife  abandonment,  where  the 
wife  has  left  the  husband  because  of  some  act  of  his 
which  she  deems  sufficient  to  justify  her  conduct. 
Some  states  have  held  that  a  criminal  action  for  wife 
abandonment  will  never  lie  where  the  wife  has  left 
the  home,  the  husband  remaining.  The  general  rule, 
however,  in  the  United  States  is  that  the  action  for 
wife  abandonment  may  still  be  maintained  where  the 
wife  has  left  the  home,  if  her  leaving  was  under  justi- 
fiable circumstances. 

What  circumstances  will  justify  a  tvife  leaving  her 
home,  and  still  permit  her  to  call  into  action  the  power 


DOMESTIC  RELATIONS  29 

of  the  state  to  arrest  and  prosecute  her  husband  and 
compel  him  to  contribute  to  her  support,  is  difficult 
of  determination.  If  the  conduct  of  the  husband  has 
been  brutal  and  such  as  might  imperil  her  life,  or 
cause  her  bodily  injury,  or  make  her  living  with  him 
intolerable,  the  courts  will  justify  her,  and  a  suit  for 
wife  abandonment  may  be  maintained.  But  gen- 
erally conduct  on  his  part  which  may  be  exceedingly 
objectionable,  such  as  the  use  of  foul  language,  accu- 
sations of  unchastity,  penuriousness,  etc.,  will  not  be 
sufficient  to  justify  the  abandonment  of  the  home  by 
the  wife,  and  to  render  the  husband  guilty  of  the 
criminal  offense. 

Punishment  of  the  Offender. 

Nearly  all  statutes  touching  the  subject  of  wife 
abandonment  provide  for  a  prison  sentence,  but  give 
to  the  court  an  option  to  place  the  offender  upon  pro- 
bation for  a  period  of  time  with  or  without  bond,  con- 
ditioned upon  his  contributing  during  such  time  to 
the  proper  support  and  maintenance  of  the  family. 
What  is  a  proper  allowance  under  such  acts  is  gen- 
erally a  matter  to  be  determined  by  the  sound  dis- 
cretion of  the  court,  and  is  not  subject  to  review  by 
a  court  of  appeal.  The  rule  usually  followed  by 
courts  under  circumstances  of  this  kind  is,  that  if 
there  are  no  children  the  wife  should  be  awarded 
one-third  of  the  income  of  the  husband ;  and  if  there 
are  children  and  they  remain  with  the  wife,  she  should 
receive  as  much  as  is  possible  under  all  the  circum- 
stances, for  the  husband  upon  probation  to  pay,  leav- 
ing always  to  him  sufficient  means  to  feed  and  clothe 


30  MODERN  AMERICAN  LAW  LECTURE 

himself  properly,  in  order  to  conduct  the  business  in 
which  he  is  engaged. 

V. 

C0X7BTS  OF  DOMESTIC  RELATIONS. 

In  the  last  few  years  several  Courts  of  Domestic 
Relations  have  been  established  in  the  United  States. 
First  among  these  was  the  Chicago  court,  which  is  a 
branch  of  the  Municipal  Court  of  that  city.  The  pur- 
pose of  the  Court  of  Domestic  Relations  is  to  bring 
together  into  one  central  place  all  that  class  of  cases 
which  have  to  do  directly  with  the  family  relations. 
It  was  considered  by  the  organizers  of  the  court  that 
by  bringing  all  these  cases  together  they  could  be 
handled  with  much  more  expedition,  better  records 
could  be  kept,  and  a  closer  watch  maintained  on  the 
families  involved,  than  by  having  the  cases  scattered 
through  a  large  number  of  courts. 

How  These  Courts  Do  Business. 

Chief  among  the  cases  brought  into  these  courts 
are  those  involving  wife  and  child  abandonment.  The 
first  aim  of  the  court  in  dealing  with  these  cases  is  to 
restore,  if  possible,  the  divided  family.  To  that  end, 
when  husband  and  wife  are  brought  together  in  the 
court,  an  effort  is  always  made  to  induce  them  to  for- 
get their  differences  and  to  re-establish  the  home. 
This  effort  has  been  more  or  less  successful,  and  a 
great  many  warring  parents  have  been  induced, 
through  considerations  for  the  children,  to  try  again 
to  build  up  and  maintain  a  proper  family  relation. 


DOMESTIC  RELATIONS  31 

Divorce  courts  have  for  their  purpose  the  legal 
separation  of  the  family,  but  these  Courts  of  Domes- 
tic Eelations  are  unique,  in  that  they  are  the  only 
courts  whose  purpose  is  to  maintain  the  integrity  of 
the  home  and  re-establish  it  when  it  has  been  broken 
up.  It  most  frequently  occurs  in  cases  of  wife  aban- 
donment that  the  cause  for  the  separation  is  trivial. 
Misunderstandings  arise  which  may  not  be  easily  cor- 
rected by  the  parties  themselves.  Mediation  is  neces- 
sary, and  both  parties  are  often  found  to  be  ready  to 
accept  the  mediation  of  the  court,  to  return,  and  in 
a  measure  forget  their  differences  for  the  general 
good  of  the  family  and  the  community. 

The  primary  aim  is  not  punishment,  and  very  sel- 
dom is  the  husband  who  is  found  guilty  of  wife  aban- 
donment, sentenced  to  prison  without  being  given  an 
opportunity,  if  he  will,  to  return  to  his  work,  under 
proper  bond  or  under  probation,  with  a  pledge  to  con- 
tribute regularly  a  certain  sum  for  the  support  and 
maintenance  of  his  family.  The  question  of  punish- 
ment for  the  wrong  done  by  abandoning  the  family  is 
never  considered.  The  aim  of  the  state  is  always  to 
do  that  which  appears  to  be  best  both  for  the  family 
and  the  state. 

It  often  happens,  however,  that  men  convicted  and 
given  an  opportunity  to  support  their  families  while 
upon  parole,  will  break  the  parole  and  pay  little  atten- 
tion to  the  orders  of  the  court.  Many  such  are  re- 
arrested from  time  to  time  and  often  committed  to 
the  workhouse  for  short  periods,  not  for  the  purpose 
of  punishment,  but  for  the  purpose  of  instilling  in 
them  a  wholesome  regard  for  the  law  and  for  their 


32  MODERN  AMERICAN  LAW  LECTURE 

obligations  to  their  families.  It  frequently  happens 
that  such  persons  are  paroled  several  times  after  a 
single  conviction. 

Handling  Delinquent  Cases,  Another  large  class 
of  cases  brought  into  the  Court  of  Domestic  Relations 
consists  of  persons  charged  with  contributing  to  the 
dependency  and  delinquency  of  children.  These 
cases  generally  arise  where  girls  under  legal  age  are 
taken  to  disorderly  houses,  or  some  other  act  done 
which  would  tend  to  make  them  delinquent.  It  often 
also  occurs  that  parents,  because  of  drimkenness  and 
neglect,  allow  their  children  to  grow  up  in  idleness 
and  ignorance  and  und^r  conditions  which  wiU  al- 
most certainly  result  in  their  becoming  delinquent. 
The  court  is  able,  by  bringing  all  these  cases  together, 
to  keep  detailed  records  and  more  closely  to  super- 
vise the  children  who  are  involved,  and  often  to  fur- 
nish proper  homes  for  them. 

Bastardy  Proceedings.  In  these  Courts  of  Domes- 
tic Relations  are  brought  all  actions  which  are  in- 
tended to  secure  support  and  maintenance  for  bastard 
children.  Under  the  laws  of  most  of  the  states  a 
bastardy  proceeding  is  a  civil  action  and  partakes 
but  little  of  the  nature  of  a  criminal  cause.  The  pur- 
pose is  to  determine  who  is  the  father  of  the  child, 
and  when  that  determination  is  made,  to  require  him 
to  contribute  a  certain  siun  toward  the  support  of 
the  child.  In  Dlinois  the  bastardy  act  prescribes  the 
form  of  verdict  and  judgment  to  be  used  in  such  a 
proceeding. 

By  this  form  it  is  provided  that  if  the  jury  shall 
find  the  defendant  guilty,  it  must  also  find  that  such 


DOMESTIC  RELATIONS  83 

cliild  is  a  ** bastard"  cMld.  This  becomes  a  judicial 
record,  always  open  to  inspection.  The  brand  of 
** bastard"  is  thus  fixed  to  the  child  for  life,  though 
there  seems  to  be  no  good  reason  why  such  a  record 
should  be  made  against  an  innocent  child.  Most  of 
the  statutes  of  the  several  states  also  provide  that 
the  father  of  the  child,  when  determined,  shall  sup- 
port it  for  a  period  of  from  five  to  ten  years,  and  that 
the  child  shall  take  the  name  of  the  mother.  Here 
again  there  seems  to  be  no  good  reason  why  one  who 
has  been  adjudged  to  be  the  father  of  the  child  should 
not  support  it  as  long  as  it  needs  support,  or  why  the 
child  should  not  take  the  name  of  its  father,  as  in  all 
other  cases. 

In  bastardy  proceedings  much  difficulty  arises  in 
applying  the  law  to  the  particular  facts  of  each  case. 
Under  the  law,  evidence  of  sexual  relations  which  the 
prosecutrix  had  with  other  men,  outside  the  period 
of  gestation,  is  inadmissible,  but  no  one  can  certainly 
determine,  in  any  given  case,  what  is  the  period  of 
gestation.  It  therefore  becomes  a  fact  to  be  deter- 
mined by  the  jury  under  certain  broad  limitations. 
The  period  of  gestation  is  generally  regarded  as  fall- 
ing within  from  272  to  282  days.  Yet  it  is  the  com- 
mon knowledge  of  physicians  that  the  period  may 
embrace  from  212  to  308  days. 

In  some  states  the  burden  of  supporting  a  bastard 
child  may  be  imposed  on  two  or  more  persons  who 
have  sustained  sexual  relations  with  the  prosecutrix 
during  the  period  of  gestation.  This  seems  to  be  a 
more  equitable  rule,  but  it  is  doubtful  whether  it 
tends  to  greater  morality. 


34  MODERN  AMERICAN  LAW  LECTURE 

Child  Labor  Laws. 

Courts  of  Domestic  Relations  are  peculiarly  fitted 
to  administer  the  child  labor  laws.  The  progress  of 
a  state  or  nation  may  be  often  gauged  by  the  care 
given  to  the  children  in  training  them  for  citizenship. 

A  century  ago,  substantially  no  restrictions  were 
placed  upon  either  the  character  of  the  work  or  the 
length  of  the  working  day  for  children  who  might  be 
emploj^d.  In  England  the  first  child  labor  laws 
forbade  children  under  the  age  of  seven  years  to  work 
at  any  gainful  occupation.  Such  have  been  the 
changes  wrought,  due  to  a  more  humane  view  of  life, 
that  this  age  limit  has  been  gradually  raised  both  in 
Europe  and  in  the  United  States,  so  that  now  it  is 
unlawful  to  employ  children  at  most  occupations  be- 
fore they  have  reached  the  age  of  fourteen  years,  and 
in  some  states  the  age  is  placed  at  sixteen  years.  This 
change  in  attitude  toward  child  labor  has  wrought  a 
great  economic  change. 

Under  the  old  poor  laws  of  England  an  allowance 
was  made  by  the  government  to  poor  families,  based 
upon  the  number  of  their  children.  The  more  chil- 
dren the  greater  was  the  allowance.  Since  children 
could  then  be  employed  in  factories  and  workshops 
they  possessed  a  great  economic  value,  and  large  fam- 
ilies were  the  rule.  Gradually,  however,  as  restric- 
tions have  been  placed  upon  their  employment,  chil- 
dren have  become  an  economic  burden,  and  the  num- 
ber of  large  families  therefore  has  correspondingly 
decreased. 

While  child  labor  laws  are  of  great  value  and  tend 
toward  a  better  development  of  manhood  and  woman- 


DOMESTIC  RELATIONS  35 

hood,  yet  they  must  be  framed  and  administered  with 
great  wisdom,  or  they  will  discourage  ambitious  chil- 
dren whose  parents  need  their  early  support,  and  will 
lead  many  to  become  indolent  rather  than  industrious. 
While  children  must  not  be  employed  in  situations 
where  they  will  be  subjected  to  long  hours  of  strain, 
yet  they  should  always  be  encouraged  to  form  habits 
of  industry  by  doing  such  tasks  as  will  in  no  way 
endanger  either  their  mental  or  physical  well-being. 
Cases  involving  a  breach  of  the  child  labor  laws  are 
usually  those  where  some  employer  has  been  arrested, 
and  brought  before  the  court,  charged  with  employ- 
ing a  child  under  the  legal  age. 

In  nearly  every  case  both  the  child  and  its  parents 
appear  in  court  to  plead  for  the  discharge  of  the 
defendant,  and  it  is  often  found  the  defendant,  in- 
stead of  being  a  willful  violator  of  the  law,  has  but 
yielded  to  the  earnest  entreaties  of  a  mother  or  father 
to  employ  the  child,  in  order  that  its  wages  may 
aid  the  family  in  securing  many  needed  things  for 
the  household. 

Wide  Discretionary  Jurisdiction  in  a  Number  of 
Matters.  Among  many  other  cases  brought  into 
Courts  of  Domestic  Relations  are  those  having  refer- 
ence to  the  enforcement  of  the  compulsory  education 
laws  and  those  forbidding  the  employment  of  women 
for  more  than  a  fixed  time  during  any  one  day.  These 
courts  are  largely  administrative  in  their  function, 
and  never  before  have  judges  exercised  such  wide 
powers  as  in  this  new  effort  to  define  and  regulate 
the  relations  of  the  various  members  of  the  family 
toward  each  other  and  toward  the  public. 


36  MODERN  AMERICAN  LAW  LECTURE 

VI. 

JUVENILE  COURTS. 

Nowhere  else  has  the  progress  of  a  people  been 
more  clearly  demonstrated  than  in  the  establishment 
of  juvenile  courts.  Within  the  last  twenty  years 
nearly  every  state  has  created  one  or  more  of  these 
courts,  whose  purpose  is  to  deal  with  the  offenses  of 
children  and  to  provide  for  the  suitable  care  and 
training  of  dependent  and  delinquent  children. 

In  Illinois  it  is  provided  that  every  county  having 
a  population  of  500,000  or  over  shall  establish  and 
maintain  a  separate  Juvenile  Court.  Generally,  de- 
pendent, neglected  and  delinquent  children  brought 
into  these  courts  must,  if  male,  be  under  the  age  of 
seventeen  years,  and  if  female,  under  the  age  of 
eighteen  years. 

Any  reputable  person  in  the  county  may  file  with 
the  court  a  petition  in  writing,  setting  forth  that  a 
certain  child  is  dependent,  neglected  or  delinquent, 
and  the  court  may  then,  upon  examination  of  the  peti- 
tion, direct  that  process  be  issued  to  bring  such  child 
and  its  parents,  or  its  guardians,  before  the  court. 
If  upon  the  hearing  the  child  is  found  to  be  dependent 
or  delinquent,  the  court  will  direct  what  disposition 
be  made  of  it.  The  court  has  full  power  to  grant  pro- 
bation and  release  the  offender  upon  promise  of  bet- 
ter behavior,  or  to  commit  him  to  an  institution.  The 
court  may  also,  if  it  deem  proper,  remand  the  child 
to  the  criminal  courts,  to  be  there  tried  as  any  other 
accused  person.    In  the  trial  of  these  cases  the  laws 


DOMESTIC  RELATIONS 


37 


generally  provide  for  a  jury  of  six  men,  but  in  the 
actual  practice  a  jury  is  seldom  called  upon  to  decide 
the  issue. 

The  establishment  of  these  courts  has  entirely 
changed  the  attitude  of  the  state  toward  this  class 
of  offenders.  Instead  of  avenging  itself  because  of  a 
•violation  of  its  most  sacred  laws,  the  state  acts  upon 
the  broadest  principles  of  paternalism,  and  seeks  only 
to  do  that  which  will  be  best  for  the  child  and  for  the 
social  well-being  of  all  the  citizens  of  the  state. 


■  ij  a  If  lord  -— 

GAYLAMOUNT  § 
PAMPHLET  BINDER    ' 

Syrocu$«.  N.Y. 
Stockton,  Calif.  . 


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A    000  683  415    4 


